The prosecutor, wrote the first hispanic Supreme Court Justice Sonia Sotomayor, had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.” She added, “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century..”

Sotomayor linked the the question to once commonplace “appeals to race” by prosecutors.

In the 1945 case Holland v. State, a prosecutor asked the jury to “consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,” Sotomayor noted.

In the 1907 case Taylor v. State, another Texas prosecutor assured a jury, “I am well enough acquainted with this class of ni**ers to know that they have got it in for the [white] race in their heart.”

“The prosecutor’s comment here was surely less extreme,” Sotomayor wrote. “But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.”

The defendant, Bongani Calhoun, was arrested and charged with taking part in a drug conspiracy—a crime for which he was subsequently convicted. The defense had argued that while Calhoun went along on a road trip with friends, he did not know of their plans to buy cocaine. Calhoun received a 15-year prison term.

The high court ultimately denied to hear Calhoun’s case. While Sotomayor agreed with the refusal, she remained troubled by what had happened in Texas.